The story so far: The Forest Conservation Amendment Act of 2023 has received limited attention and little discussion about its impact on forests and its inhabitants. From the colonial forest law in 1865 to the Forest Conservation Amendment Act, 2023, more than fifteen laws, Acts, and policies have been formulated interlinking forests with legal and policy frameworks. However, there is little to no recognition of the rights of indigenous communities in these Acts, who are the rightful inhabitants of forest lands.

What is the new amendment?

At first glance, the amendment primarily aims to tackle the critical issues of climate change and deforestation’s adverse effects, focusing on effective management and afforestation. The law further aims to determine how forests can be utilised for economic gain, and the manner in which it seeks to achieve this goal is outlined in the legislation. The primary method used to achieve this objective involves removing forests from the law’s jurisdiction, thereby facilitating various forms of economic exploitation. As per the amendment, the forest law will now apply exclusively to areas categorised under the 1927 Forest Act and those designated as such on or after October 25, 1980. The Act will not be applicable to forests that were converted for non-forest use on or after December 12, 1996 and land which falls under 100 kilometres from the China and Pakistan border where the central government can build linear projects. To establish security infrastructure and facilities for surveillance, the central government is authorised to construct security measures in areas up to ten hectares. This provision also applies to areas (up to five hectares) which are designated as vulnerable. Within these regions, the government, with the necessary approvals, can implement security protocols as described above. Initiatives like ecotourism, safari, environmental entertainment, and more may be implemented in these areas. The main objective of these initiatives is to improve the livelihoods of those reliant on forest resources, a goal that has drawn criticism from tribal communities and human rights activists.

Why was the amendment brought in?

The Godavarman Thirumulkpad case, a prominent legal dispute that came before the Supreme Court in 1996, led to an interpretation of forest land in accordance with its ‘dictionary meaning’. Subsequently, all private forests were brought under the ambit of the 1980 law. This has been a subject of debate as it was argued that the legislation primarily aims to restrict forest land from being used for various non-forest purposes, including the conversion of land for large-scale industries. The law has faced significant opposition, especially from private landowners, individuals, and organisations involved in forest conservation, for its perceived adverse impact on the country’s industrial progress. In other words, the need to exclude forest land from the legal framework was mainly driven by the requirements of the industrial classes in the country. It is in this context that concerns regarding the Forest Conservation Act tend to resurface periodically, echoing the apprehensions of indigenous communities and human rights activists. These factors came to the forefront again when the Forest (Conservation) Amendment Bill was introduced in Parliament in March, triggering extensive discussions and debates. The Parliament then referred the Bill to a 31-member Joint Parliamentary Committee (JPC).

What did the JPC recommend?

Of the 31-member JPC addressing the issue, only six individuals were from the opposition. The JPC submitted its report to Parliament on July 20, within three months. The critical comments from the committee members and public appear to have been largely disregarded; reduced to dissenting notes, holding a minority viewpoint on the Bill.

Therefore, the Bill successfully passed in both houses of Parliament without any substantial debates or discussions. There have been no collaborative discussions with the southern States concerning matters related to their specific geographical locations. A few days after the Act was enacted, the Odisha government revoked the “deemed forest” status in the State but had to later cancel the order due to public outrage and cited that it is waiting for detailed rules and guidelines from the concerned Central Ministry. If the government were to remove the forests from the purview of the Forest Conservation Act, it would effectively obstruct indigenous communities from asserting their rights.

What happened to the stipulation of ‘prior consent’?

The Forest Conservation Act underwent important amendments in 2016 and 2017, which stipulated that prior consent from the tribal grama sabha was mandatory for any alterations to forests for non-forest purposes. However, the recent revisions to the legislation have removed the necessity for such consent. Nevertheless, in this situation, State governments can proactively engage in specific activities within this framework through the inclusion of grama sabhas, particularly in matters of land acquisition for various purposes, by establishing State-level steering committees. But numerous State governments might hesitate on this aspect, as they hold a preconceived notion that Adivasi grama sabhas are ‘anti-development,’ and they fear that their decisions could hinder economically lucrative afforestation initiatives.

What is compensatory afforestation?

Compensatory afforestation, as outlined in the new legislation, encompasses various projects and schemes that can be undertaken by both private individuals and organisations (including large corporations) for afforestation or reforestation purposes. The Compensatory Afforestation Act encountered significant challenges in the past, primarily due to ambiguities in the original legislation and shortage of available land. The goal of the new amendment is to streamline the process. However, there is apprehension regarding the potential environmental implications of this amendment. The law mandates that for every parcel of land that is lost due to afforestation efforts, an equivalent amount of land must be afforested elsewhere. It does not specify the type of trees that should be planted, leaving room for discretion.

How does this affect the Forest Rights Act (FRA)?

The FRA has had notable impacts in various regions, such as the Mendha-Lekha in Maharashtra, Loyendi in Odisha, and Malakkappara in Kerala. Despite the initial enthusiasm, it appears that both the Central and State governments have become less enthusiastic about implementing the FRA in their States. Many consider the Act as an impediment to convert forest land for non-forest purposes. The State government and its bureaucracy hold the view that granting community rights under the FRA could weaken the State’s authority over the forest. They anticipate potential legal challenges to any such endeavours. To navigate this situation, the government has opted to reduce or dilute the extent of forest areas, rather than amend the FRA, thereby limiting the potential for additional Adivasi claims. The amendment also fails to address the growing issue of human-animal conflicts in forest areas, particularly in the Adivasi hamlets of the Western Ghats region. This conflict not only endangers the livelihoods of the Adivasis but also poses a threat to wildlife.

What are the problems?

When examined superficially, the law appears to address issues without complications. However, once the law is put into practice, it presents substantial challenges to forest dwelling communities and government agencies. The concept of afforestation, which offers considerable financial incentives to private individuals and institutions for afforestation projects, fundamentally clashes with the idea of forest governance. Furthermore, it contradicts the concept of decentralised forest governance as forests in the country fall under the concurrent list. Such governance practices are against the spirit of federal norms. Moreover, defining strategic linear projects becomes exceptionally complex and vague. Unlike external security threats like border disputes and cross-border skirmishes, internal environmental security should also be considered a significant concern, especially in States that consistently face natural disasters. Regrettably, this priority is not guaranteed.

Abhilash Thadathil is Assistant Professor at the Centre for Development Studies, Thiruvananthapuram